Florida Supreme Court: Death penalty cases finalized before 2002 will stand

TALLAHASSEE — The Florida Supreme Court cemented death sentences for nearly 200 prisoners Thursday, ruling that they are not eligible for lower sentences or rehearings under a revamped death penalty law.

In a 6-1 ruling, the justices said death sentences finalized before a June 2002 U.S. Supreme Court decision would remain in effect, paving the way for executions to begin again in Florida. However, the ruling left open the possibility that more than half of Florida's death row inmates could be resentenced based on rulings this year that threw out the state's death penalty rules.

The court also lifted a stay on the execution of Mark James Asay, originally scheduled for March 17 of this year. It's a signal that executions could begin again after an 11-month hiatus as Florida's death penalty was shrouded in uncertainty.

Asay was convicted in 1988 of killing two men in Jacksonville. If he is executed, Asay would be the first white person put to death for murdering a black person in Florida, Justice James Perry said.

In statements, Gov. Rick Scott and Attorney General Pam Bondi said they were "reviewing the ruling." The state has executed 23 people while Scott has been in office, more than any governor since the death penalty was re-instated in 1976.

Thursday's ruling caps a tumultuous year for Florida's death penalty. The only execution in 2016 was that of Oscar Ray Bolin, Jr. on Jan. 7. He was executed just five days before the U.S. Supreme Court ruled the state's death penalty unconstitutional in Hurst vs. Florida, prompting the Legislature to re-write sentencing laws.

In October, the Florida Supreme Court decided that the Hurst ruling required unanimous votes by juries to make a death sentence. Current law requires a supermajority vote by 10 of the 12 members of a jury.

Figuring out how to apply those rulings to the 384 prisoners on death row has been a "thorny issue," the justices wrote, requiring them to balance fairness and inmates' constitutional rights with the principle that decisions by judges and juries are final.

Critics of Thursday's ruling, including some justices on the deeply divided court, say drawing a line in the sand on the day the U.S. Supreme Court handed down its 2002 decision in Ring vs. Arizona is arbitrary. That case required that juries find specific aggravating factors before sentencing someone to death and called Florida's death penalty laws into question.

While several justices disagreed with parts of the case, just one justice, who retires Dec. 30, dissented entirely. Perry wrote that all death row inmates should have their sentences changed to life in prison.

"(The ruling) creates an arbitrary application of law to two groups of similarly situated persons," he wrote. "Coupled with Florida's troubled history in applying the death penalty in a discriminatory manner, I believe that such an application is unconstitutional."

Justice Barbara Pariente agreed with Perry that the ruling should apply retroactively to all death row inmates but said they should be entitled only to a re-hearing, not guaranteed a lesser sentence.

Justice Fred Lewis argued that inmates whose cases were finalized before the Ring decision but who challenged the lack of unanimity and jury fact finding in Florida's old death penalty rules should be eligible for resentencing.

"Vindication of these constitutional rights cannot be reduced to either fatal or fortuitous accidents of timing," he wrote.

The court's decision could lead to more confusion about Florida's death penalty in the future, said Robert Dunham, executive director of the Death Penalty Information Center in Washington.

"That's not a principled basis to decide whether someone should live or die," he said. "And that only adds additional fuel to the cries of death penalty opponents that the United States is incapable of carrying out capital punishment in anything but an arbitrary manner."

Perry made the same point in his dissent, saying he "no longer" thinks the state can constitutionally execute convicted killers.

After Thursday's ruling, the future remains unclear for more than 200 inmates whose cases were not finalized before Ring was handed down.

In other rulings Thursday, the Supreme Court granted new sentencing hearings to death row inmates John F. Mosley, convicted in 2006 of killing his girlfriend and infant son in Jacksonville, and Eric Lee Simmons, convicted in 2003 of kidnapping a woman, then sexually assaulting and stabbing her to death in Lake County. Their sentences were both final after the Ring decision.

The justices wrote in Mosley's ruling that "Hurst should be applied" to cases that became final after Ring. But dozens more appeals from inmates seeking a new sentence could cost the state millions and flood the courts.

Dunham said one option is for the Legislature to step in and convert all 384 death sentences to life in prison.

That's not likely to happen, though.

Asked this week if he thinks the Hurst case should apply retroactively to existing death row inmates, Senate President Joe Negron, R-Stuart, was brief in his reply: "No."

Contact Michael Auslen at mauslen@tampabay.com. Follow @MichaelAuslen.